Once there was a concerted attempt to use the United States constitution to prevent a president from seeking re-election. It may well be that the president would get popular support, it was contended, but the constitution was against him. What voters wanted did not matter.
This attempt was to become known as “birtherism”. The president seeking re-election was Barack Obama, and the most notable proponent of birtherism was, of course, Donald Trump. For Trump and his supporters, Obama should not be president regardless of what the voters wanted. They said the constitution was against him: the president had to be a natural-born citizen of the United States.
Of course, birtherism was a mad and untrue conspiracy theory: Obama was a natural born-citizen of the United States. But it reminds us that when it suits Trump to use the constitution to block the popular will, he will do so.
Indeed, when Trump lost both the popular vote and the electoral college vote in 2020 he sought to use the eccentric legal theories of John Eastman and others to game the constitution so that the vice president Mike Pence would intervene in the usually formal electoral count so as to facilitate Trump’s re-election.
Again, it did not matter to Trump and his supporters what the popular (and electoral college) vote was (and he denied he had lost in any case). What could be done (supposedly) by law would overturn the votes of the people.
Trump now maintains that he should be allowed to serve a further presidential term: that his popularity means there should be no constitutional check on him being president again. On the face of it, the US constitution is against him. The 22nd amendment expressly states that “No person shall be elected to the office of the President more than twice”.
“But Aha!” say Trump and his supporters. That only precludes him from becoming president again by election. What if he stands as vice president to a stooge, as Vladimir Putin did with Dmitry Medvedev, who then happily resigns to let Trump take over? Or what if Trump somehow games the presidential line of succession so as to become president by another means?
What if? What if? Here there is a frustration that the 22nd amendment is not as clear as it could be. Nor does it tie in neatly with the 12th amendment on who can be eligible to be president and vice president. This is no doubt because the idea of a president seeking to somehow serve a further term without an election did not cross the minds of those drafting the amendments.
Had those who drafted the 22nd amendment been asked by an officious bystander in 1947 about whether it should cover service in a third term as well as being elected for a third term, no doubt they would have nodded and said “of course!”. But they were not, and so they did not.
We are thereby left with a provision which may provide wiggle-room for Trump to serve a further term, with the support of motivated reasoning by sympathetic conservative judges and the political cooperation of Medvedev-type accomplices. The constitution should have prevented Obama being president, said the birther Trump, but it will not stop me.
Turning to France, there was once a political leader who demanded that any elected official convicted of misappropriation of funds should be banned from public office for life. That political leader was, of course, Marine Le Pen back in 2013.
Le Pen is now an elected official convicted of misappropriation of funds. She also now has a different view after receiving not a lifelong ban but a five-year restriction, imposed following her conviction for embezzlement. “I’m not going to submit to a denial of democracy this easily,” the 2025 Le Pen says, in contrast with the 2013 Le Pen.
Like Trump, Le Pen has shifted her position on whether mere law should restrict her ability to seek political power. This is not a surprise. Politicians tend to be inconsistent, and hypocrisy is rarely a fatal political vice. But it does subvert the notion that Trump, Le Pen and others have any absolute commitment to voters always having the final say. If they can use the law to block an opponent, they will do so.
In England, there is perhaps a similar inconsistency. The successful left-wing London politician Lutfur Rahman, currently serving a second term as mayor of Tower Hamlets, was banned from public office for five years for electoral fraud, to the claps and cheers of many on the political right. What the voters wanted was, at that time, less important than the court properly applying the law. Now it would seem that some of those who endorsed that ban are aghast at the restrictions on Le Pen, also convicted for fraud.
The underlying issue here is that elections are necessarily a regulated activity. They can only exist by way of law and the law provides who can stand and how they can be elected.
Every democracy has restrictions on who can and cannot stand. In England there are several ways in which you can be ineligible or become disqualified. None of them are controversial. And as conservative politicians and pundits often remark, with rights come responsibilities—and the right to seek election presumably carries with it the responsibility not to break the law.
A far more significant issue for free elections in the current climate is less about the rights of those seeking election than the rights of electors. Many illiberals are seeking to make voting harder with, for example, requirements for voter identification. This voter suppression is as at least as contrary to the principle of free and fair elections as restricting which candidates can be voted for.
Any person who is sincerely in favour of free elections should care as much if not more about how electors are being restricted than about who can be elected. For that is the essence of any democratic system. Confining who can vote is as at least as concerning as confining who can be voted for.
Support for free and fair elections therefore means not cynically supporting elections which advantage one candidate over another, either by suppressing voters or restricting opponents. But that would mean taking free elections seriously—and that is the last thing certain illiberal politicians really want.
